Johnson v. State

• Decision Date: 27 May 1905
• Citation: 88 S.W. 905,75 Ark. 427
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

88 S.W. 905

75 Ark. 427

JOHNSON v. STATE

Supreme Court of Arkansas

May 27, 1905

Appeal from Saline Circuit Court ALEXANDER M. DUFFIE, Judge.

Affirmed.

Judgment affirmed.

Wood & Henderson, for appellant.

Appellant was not guilty of larceny. 2 Bish. Cr. Law, § 758; 3 Green. Ev. §§ 150, 160; 18 Am. Eng. Enc. Law, 459 Russell, Crimes, 200; 45 N.Y. 392. Where the property is voluntarily parted with, there is no larceny. 17 Ill. 399; 2 Phila. 385; 94 N.Y. 90; 23 N.Y. 61; 53 N.Y. 11; 13 A. 422; 25 L. R. A. 346; 43 P. 2; 2 Q. B. 312; 59 P. 593; 36 Penn. 506; 22 So. 378; 49 Ark. 147; 87 S.W. 836; 178 Pa.St. 23. The evidence of Cobb as to the circumstances of a race run a month after the Doucette race was inadmissible. Under. Cr Ev. 107, 584; 20 Ark. 225; 32 Ark. 220; 45 Ark. 132; 59 Ark 422; 52 Ark. 516; 50 Ark. 287; 39 Ark. 278, 626; 2 Ark. 242; 4 Ark. 59; 81 S.W. 450; 61 N.E. 293.

Robert L. Rogers, Attorney General, for appellee.

Appellant was guilty of larceny. 2 Bish. Cr. Pro. § 813; 2 Bish. Cr. L. 824; 6 T. B. Mon. (Ky.) 130; 1 Den. 120; 11 Q. B. 920; 1 Den. Cr. Cases, 584. Where possession is fraudulently obtained in pursuance of an intent formed at the time, it is larceny 25 Ia. 561; 76 Ia. 85; 56 Mich. 584. This was, a question for the jury to determine. 49 La.Ann. 1337. Proof of other offenses based upon the same general plan or scheme are admissible to show intent. 11 Am. & Eng. Enc. Law, 514; Under. Cr. Ev. 111; 99 Pa.St. 388; 82 Wis. 580.

OPINION

HILL, C. J.

The appellant was indicted by the grand jury of Garland County for the crime of larceny, and on change of venue was convicted in Saline County, and sentenced to four years in the penitentiary, and has appealed.

About 1902 a party of men, known by various names, among others the "Buckfoot Gang," were operating in various parts of the country. Their scheme was to have a foot race between two well-advertised runners. One of them was to be the favorite runner of a club of millionaires who were given to sports of all kinds. The other was comparatively unknown, but very swift and known to the club racer to be swifter than he. The club racer and the club manager, privately learning the situation and the impending fate of the club favorite, were anxious to make money out of such race, and would approach some one who had ready cash and good credit at home who would be willing to aid them, and incidentally himself, in making money out of the "sure thing." In this light it was presented to the intended victim. The party inveigled was not to bet his own money; he was merely to back the runner against the club runner with money furnished by the schemers, and bet the money the schemers furnished him. He was expected to have plenty of money in sight and good references as to his credit at home to satisfy the millionaires that he was in their class. In varying details these plans were worked at Webb City, Mo.; Salt Lake City, Utah; Aurora, Mo., and Hot Springs, Ark. In some cases it was known to the inveigled party that the club runner was going to lose the race, irrespective of speed, and in, others he rested on his certain information that his man was the fastest.

The inveigled party was always induced in some way to put up his own money, with an understanding that it was to be returned, and not really bet. Probably this was not difficult in the closing hours before the race, when the stakes were high and the excitement growing, and his belief that the result was a "sure thing." The "sure winner" had an unfortunate way of falling, while well in the lead, and the club runner would first reach the goal. To appease the disappointed and chagrined victim, and, seemingly, his friends who bet on the loser, an opportunity would be given to run the race over, giving the fallen runner's friends time to go home and repair their fortunes, and increase the purse which was to be held intact until the race was run over.

In this case Johnson decoyed one Doucette, a lumberman from, Texas, in the scheme for a race at Hot Springs. Doucette had formerly been proprietor of four or five saloons in different Texas towns, and over each of his saloons had been run a public gambling hall, not in connection with the saloon, he says, but incidentally located there. Notwithstanding Doucette's intimacy with gamblers, he was unsophisticated in the hands of the "Buckfoot Gang." It was represented to him that Eddie Morris was swifter than Harry Price, the latter the runner of the millionaires' club; that Harry knew it, and that a race could be arranged, and all that was needed was a man of his credit and cash to follow directions. He was assured by both Morris and Price, before he left Texas, that Morris was the fastest. He arranged his affairs, and came to Hot Springs with $ 8,300 ready to impress the millionaires, and extolled the swiftness of the runner, who came, he said, from his lumber camps. The arrangements were carried out. He met the millionaire clubmen, whose castles were evidently in Spain, and they put up $ 2,500 as forfeit for Price, and he, with money furnished, put up the like amount for Morris; the stakes were to be $ 5,000 on a side, making the purse $ 10,000, which was finally arranged substantially as agreed. He was furnished with large sums to bet by Price and one Thompson, the manager of the club and, was what was more important in this transaction, the stakeholder. These sums were equally divided between appellant and Doucette, and they laid the bets with the millionaires. Many thousands of dollars were bet in this way. Doucette bet $ 100 of his own, and the stakeholder privately returned it to him, and gave color to the theory that the bets on his side were feigned for the purpose of inducing the millionaires to put up their money. In the last hour of the betting Doucette parted with his $ 8,300. The witnesses for appellant claim he bet to win or lose, but he gives a different version of it.

The material parts of his testimony here given are taken from appellant's abstract. "Johnson and I then went to the bank, and drew $ 8,000 in one package. * * * I put the money in my pocket, and Johnson and I started back to the clubroom, and I said to Johnson, 'I don't believe I will go any further with this,' and he said, 'Everything is all right; come on,' and so went on to the clubroom, and they wanted to bet right away. I went into the back room, and Eddie Morris and Johnson followed me, and Eddie Morris opened his coat and said, 'There is your money, you bet that money you got out of the bank, so as to show these people it's good money got out of the bank in blocks, and you will get your money back.' So I went in and bet the $ 8,000. Mr. Johnson had a very fine diamond stud, and he bet that. I also bet two $ 100 bills that I still had. By that time the hacks were ready to start to the race." He says further: "I did not understand that I was to put up my $ 8,000, because Eddie Morris said he would give it back; that he had it in his coat pocket, and wanted me to bet my money because it was new money that came out of the bank in blocks, and the money he had in his pocket was supposed to be the referee's money. It was not my intention to put up my own money. I supposed I was to get about 25 per cent. of the winnings to pay me for my trip." Again, he says, after reiterating the substance of the above: "I considered that the money he had was mine, and I was betting his money. I never intended that any of my money should be staked on the race. I did not intend to part with my money."

Doucette found "that the race is not to the swift, nor the battle to the strong," for his runner, while nobly leading, fell. He says that he denounced the scheme, and demanded his money, but was laughed at, and the attitude of one of the party, with a pistol, as he thought, convinced him that his wisest course was to say no more about it then. The appellant's witnesses say that he agreed to let the money stay with the stakeholder until he and Johnson went home to raise more money to add to the purse, and have the race run over again within thirty days.

The State introduced witnesses who attended similar performances at Webb City, Mo.; Salt Lake City, Utah, and Aurora, Mo., and who were the several victims of those races. The same general plan and scheme was worked as in this one, and some of the participants, while varying at the different races, were the same parties as those at Hot Springs; the appellant always present and participating.

The schemers appeared in different roles in the cast, and frequent changes of names occurred, probably to fit the new role. The last race in evidence was at Aurora, Mo., the week following the one at Hot Springs. This seems to have been the "run off" of the Utah race, for Mr. Coob's benefit, Mr. Cobb being the Doucette of that transaction....